Montesquieu
 

XV.2 The origin of the right of slavery in Roman jurisconsults

One would never believe it had been pity that had esta­bli­shed sla­very, and that it went about it in three ways.1

The law of nations has held that pri­so­ners were sla­ves, so they would not be killed. The Romans’ civil law allo­wed deb­tors, whom their cre­di­tors could mis­treat, to sell them­sel­ves. And natu­ral law has held that chil­dren whom an ensla­ved father could no lon­ger feed should be ensla­ved like their father.

These rea­sons of the juris­consults are not sen­si­ble. It is false that it is per­mis­si­ble to kill in war other than in case of neces­sity ; but once a man has made a slave of ano­ther, he can­not say that he had to kill him, since he has not done so. The only right that war can give over cap­ti­ves is to secure their per­son suf­fi­ciently so that they can no lon­ger do harm. Homicides com­mit­ted in cold blood by sol­diers and after the heat of the action are rejec­ted by every nation on earth.2

Secondly, it is not true that a free man may sell him­self. A sale sup­po­ses a price ; with the slave sel­ling him­self, all his pro­perty would be sub­su­med into the mas­ter’s : the­re­fore the mas­ter would pay nothing, and the slave would receive nothing. He would have a pecu­lium,3 you will say. But the pecu­lium is acces­sory to the per­son. If it is not per­mis­si­ble to kill your­self, because it robs your home­land of your per­son, it is not more per­mis­si­ble to sell your­self. The liberty of each citi­zen is a part of public liberty. This qua­lity in the popu­lar state is even a part of sove­rei­gnty. To sell one’s title of citi­zen4 is an act of such extra­va­gance that a man may not be sup­po­sed capa­ble of it. If free­dom has a price for the man who buys it, it is without price for the man who sells it. The civil law which allo­wed men to divide pro­perty could not have inclu­ded in the pro­perty a por­tion of the men who were to make that divi­sion. The civil law that makes res­ti­tu­tion on contracts that contain some ille­gal loss can­not deny res­ti­tu­tion against an agree­ment that contains the most ille­gal loss of all.

The third man­ner is birth. It falls along with the two others. For if a man could not have sold him­self, he could even less have sold his unborn son. If a pri­so­ner of war can­not be redu­ced to ser­vi­tude, even less can this be done to his chil­dren.

What makes the death of a cri­mi­nal some­thing licit is that the law that puni­shes him has been made for his bene­fit. A mur­de­rer, for exam­ple, has bene­fit­ted from the law that condemns him : it has pre­ser­ved his life at every moment ; he the­re­fore can­not pro­test against it.

The same is not true of the slave : the law of sla­very can never have done him any good ; it is in all cases against him, and never for him, which is contrary to the fun­da­men­tal prin­ci­ple of all socie­ties. It will be said that it could have done him some good, since the mas­ter has pro­vi­ded him with food. Slavery would then have to be limi­ted to per­sons una­ble to earn their living. But no one wants sla­ves like that. As for chil­dren, nature, which gave milk to mothers, has pro­vi­ded for their nou­rish­ment ; and the rest of their child­hood is so near the age when they have the grea­test capa­city for beco­ming use­ful that one could not say that the man who would feed them to be their mas­ter contri­bu­ted any­thing.

Slavery is moreo­ver as contrary to civil law as to natu­ral law. What civil law could pre­vent a slave from fleeing, he who is not in society, and who is conse­quently not concer­ned by any civil laws ? He can only be retai­ned by a family law, which is to say the mas­ter’s law.

Institutes of Justinian, book I.

Not to cite those who eat their prisoners.

[Change set aside as personal savings.]

I am speaking of slavery in the strict sense, as it was among the Romans and is established in our colonies.